Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Wednesday, November 16, 2011

John Sherman on Law Firm Management and Human Rights

It has become something of a commonplace to speak to the issue of the human rights obligations of corporations in the conduct of their operations. It is less common to speak of the human rights obligations of professionals who run sometimes extensive businesses advising companies of their human rights obligations.

My friend and colleague, John Sherman chaired a conference sponsored by Advocates for International Development (A4ID) in in London on September 16, 2011, at which partners and CSR Managers from eight City law firms participated. Law firms that took part in the meeting were: Allen & Overy, Clifford Chance, Herbert Smith, Hogan Lovells, Kirkland & Ellis, Reed Smith, Simmons & Simmons, and White & Case. This meeting drew out recommendations for how firms can ensure they know, and can show, that their business practices respect human rights.

A4ID describes itself as bringing together the legal and development professions to maximise progress towards meeting the aims of the Millennium Development Goals. We do this by ensuring all those working towards the eradication of poverty have access to free legal support, while also raising awareness of how the law and lawyers can play a role in ending extreme poverty. A4ID’s legal projects have impacted on 114 countries around the world, providing over £12 million worth of free legal advice to 350 development organisations. (From the A4ID Press Release Nov. 14, 2011).

The A4ID Press release is reproduced in part below:

Implementation of Guiding Principles on Business and Human Rights by law firms

14 November 2011, London: The charity Advocates for International Development (A4ID) today released a new report that considers how the new UN Guiding Principles on Business and Human Rights should be implemented by law firms.

Recommendations in the report include:
--The need for law firms to integrate high level human rights policy commitments into corporate governance structures.
--The need to fill gaps in law firms’ human rights due diligence processes.
--The need for guidance to ensure firms are not deemed complicit in the adverse human rights impacts of suppliers and clients.
--The need to address the relationship between the Guiding Principles and the professional legal standards of conduct.

Law firms played an active role in developing the Guiding Principles on Business and Human Rights and are already advising their clients on their application. However, A4ID recognised the need for analysis of how the Guiding Principles apply to law firms as businesses.

This new report summarises the discussions amongst Partners and CSR Managers from eight City law firms at a meeting convened by A4ID and chaired by John Sherman in September 2011. This meeting drew out recommendations for how firms can ensure they know, and can show, that their business practices respect human rights.

Like all other businesses, law firms have a responsibility to ‘respect’ human rights under the ‘Protect, Respect and Remedy Framework’ and not to infringe on human rights through their operations and business relationships. Despite this, it appears that no law firm has a publicly available, high level policy committing it to respect human rights in the management of its business and only two firms publish corporate responsibility reports in accordance with the Global Reporting Initiative (GRI) Guidelines that contain key performance indicators on human rights.

A4ID’s new paper ‘Law firms’ implementation of the Guiding Principles on Business & Human Rights’ considers law firms’ practices with respect to clients, supply chains and employees and suggests best practice and ways forward by answering the question ‘what do we expect of the legal profession in these areas?’

Employment issues: Under Guiding Principle 12, law firms must respect the human rights of employees as expressed in the International Bill of Human Rights. The meeting highlighted that many policies implemented by firms may already address human rights but that there was no high level commitment to ensure these are aligned in the same direction and to ensure buy-in throughout the entire organisation.

Supply chains: Law firms have lengthy supply chains that can have human rights impacts. If a law firm’s supply is found to have infringed on human rights, under the Guiding Principles the firm should use its leverage to mitigate remaining impact. If this is not possible, the firm should take steps to terminate the relationship, taking into account credible assessments of the potential harm to human rights from termination.

However, to prevent against external suppliers from infringing on human rights from the start, law firms must engage in human rights due diligence processes for their entire supply chains.

Client issues: Increasingly law firms are being ‘named and shamed’ as a result of who they represent and advise. And under Guiding Principle 17 business enterprises – including law firms – may be perceived as being complicit in the acts of another party where, for example, they are seen to benefit from an abuse by that party.

The discussions at the meeting focussed on when law firms should choose not to represent a client, when they should use leverage to prevent a client’s actions that infringes on human rights, and when to consider terminating a relationship with a client.

John Sherman, Secretary, General Counsel and Senior Advisor to Shift said, “Under the recently-endorsed UN Guiding Principles for Business and Human Rights, a law firm must “know and show” that it is respecting human rights throughout its operations. This is more than pro bono work. A firm should pay close attention to, and address, its actual and potential involvement in negative human rights impacts in its workplace, in its supply chain, and in the services it renders to clients."

Yasmin Batliwala, Chief Executive of A4ID said, “A4ID’s legal partners have committed to using their skills to meeting the aims of the Millennium Development Goals and many have also publicly supported the Guiding Principles. But together we recognised that as leaders in the area of corporate responsibility there was a need for a robust discussion to ensure their own operations are in line with this important new framework.”

“A4ID hopes this new paper will ensure law firms are able to lead the way as responsible businesses. By bringing together representatives from many of the world’s leading law firms A4ID initiated the first in-depth discussion into how law firms can meet their responsibility to respect human rights, and thus protect development, while recognising the unique challenges that law firms face.”

The Guiding Principles were developed by Professor John Ruggie, the United Nations’ Secretary General’s Special Representative on Business and Human Rights and were unanimously endorsed earlier this year by the UN’s Human Rights Council. They represent the minimum global standards of conduct for governments and all businesses whatever size and wherever they are based.

The Protect, Respect and Remedy Framework is based on the principles that states have the duty to protect against human rights abuses including by businesses; businesses have a responsibility to respect human rights by ‘knowing and showing’ that they are addressing human rights impacts in which they may be involved; and thirdly, the need for greater access to remedy by affected communities and individuals.

Professor John Ruggie, the UN Secretary General’s Special Representative on Business and Human Rights said, "Law firms can have significant impacts on human rights through their operations and the services they render. Like all other business enterprises, firms should respect human rights in alignment with the UN Guiding Principles on Business and Human Rights. This creates both challenges and opportunities for firms."

The conclusion of the Report are worth reproducing below.

In conclusion, the legal professional rules of conduct examined in this report do not prohibit, but instead encourage, and in certain respects require, a lawyer to advise a client on the potential human rights impact of the client’s action, in order to prevent or mitigate the impact.

However, this places a premium on the need for the firm to obtain sufficient information as early as possible to enable the firm to advise the client, or point it to where it can get further input. Obtaining this information from some clients may be problematic, particularly where the firm is hired simply to ‘paper the deal’. This demonstrates the need for the firm to state its commitment to human rights clearly and publicly. And where the client ignores the firm’s advice, and persists in engaging in conduct that is likely to impact human rights adversely, the firm faces the difficult decision of whether to terminate its representation, consistent with Guiding Principle 19 and professional rules of conduct that require evidence of good cause, adequate prior notice and steps to minimise legal prejudice to the client.

Finally, in order for the firm to ‘show’ that it is respecting human rights, it must develop appropriate processes to demonstrate that it is doing so without jeopardising legitimate client interests and professional legal obligations to preserve client confidentiality. (John Sherman, supra, at 25).

These conclusions remind us that human rights obligations extend well beyond conventional economic enterprises. While the focus in this case was on law firms, the idea could be well extended to all non governmental organizations.

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Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

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About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.